Full Judgment
Balakrishna, J
1. This Misc. Second Appeal is preferred against the Judgment and decree of the Civil Judge, Karwar dated 3-1-1989 passed in R.A.No. 44/1988 reversing the decision of the Munsiff, Honavar, passed on 26-5-1988 in O.S. No. 17/1976.
2. The material facts in brief are as follows: The suit in O.S.No. 17/1976 which was pending on the file of the Munsiff, Honavar, was posted for evidence of the plaintiffs on 26-5-1988. On the said date the parties remained absent and therefore the Counsel for the plaintiffs filed an application for adjournment but the adjournment application was rejected and the suit was dismissed for default. Thereafter appeal was preferred before the Civil Judge, Karwar, against the said order of dismissal. The dismissal order was not on merits.
3. The appeal was allowed by the Appellate Court and the Judgment and decree passed by the trial Court was set aside and the suit was restored to file for disposal of the suit in accordance with law.
4. The Appellate Court focussed its attention on the question whether the appeal preferred before it was maintainable under Order 17, Rules 2 and 3 of Civil Procedure Code. The Appellate Court held that the appeal was maintainable since the impugned order was under Order 17 Rule 3 of C.P.C.
5. Order 17 Rule 2 C.P.C. reads thus:
'Where, on any day to which the hearing or the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit.'
According to Order 17 Rule 3 C.P.C:
'Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, -
'a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is, absent, proceed under Rule 2,'
According to Order 9 Rule 8 C.P.C:
'Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.'
Resorting to the provisions contained in Order 9 Rule 8 C.P.C. the trial Court dismissed the suit and no evidence had been recorded before the suit was dismissed for non-prosecution. The order of dismissal was in the nature of dismissal for default simplicitor. If the order had been passed under Order 17 Rule 3, the appeal would lie but not in respect of an order passed under Order 17 Rule 2.
6. The learned Counsel for the appellants contended that no evidence was recorded by the trial Court and the order dismissing the suit was passed for non-appearance of the plaintiffs and since no evidence was recorded before the said order was passed, the provisions of Order 17 Rule 2 are attracted and not Order 17 Rule 3. The learned Counsel sought support from the decision of the Supreme Court in PRAKASH CHANDER MANCHANDA AND ANR. v. JANKI MANCHANDA : [1987]1SCR288 In that case the Supreme Court took the view that, if on a date fixed, one of the parties to the suit remained absent and for that party no evidence had been recorded up to that date, the Court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 In any one of the modes prescribed under Order 9 of the Civil Procedure Code. After the amendment by Act 104 of 1976 to Order 17 Rules 2 and 3, in cases where a party is absent the only course is as mentioned in Order 17 Rule 3(b) to proceed under Rule 2. Therefore, in the absence of the defendant, the Court had no option but to proceed under Rule 2, Similarly the language of Rule 2 as it now stands also clearly shows that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit In one of the modes directed under Order 9, The Explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even If a party Is absent but that discretion is limited only to cases where a party which Is absent has led some evidence or has examined substantial part of the evidence.
7. On the other hand, the learned Counsel for the respondents contended that there is no infirmity or lack of jurisdiction and the order passed is covered by the provisions of Order 17 Rule 3. According to the learned Counsel there was no default of appearance but there was only a default in leading evidence. The learned Counsel placed reliance on decisions rendered in 1975(1) Kar. Law Journal Short Notes item 126 Irawwa v. Chennmallayya, 1978(1) Kar.Law Journal page 434 Tungavva v. Taravva and : AIR1979 Mad135 Chennaiya Naidu v. Panchayat Board. I have looked into these case laws and except for 1975(1) Kar. Law Journal Short Notes Item No. 126, the other cases are not directly on the point in issue. In IRAWWA v. CHENMALLAYYA it was held that, where on the date fixed for evidence, plaintiff was absent but his Counsel put in an appearance and prayed for an adjournment, and the Court rejected the prayer for adjournment and dismissed the suit, the dismissal comes within Order 17 Rule 3 and an appeal is maintainable. In view of the decision relied upon by the learned Counsel for the appellants in : [1987]1SCR288 , it will not be possible to adopt the view taken in the case referred to by the learned Counsel for the respondents.
8. On examination of the records, I find that an application was submitted on behalf of the plaintiffs under Section 151 C.P.C. by an advocate requesting for 3 weeks time by way of adjournment and this application came to be rejected, dismissing the suit for non-prosecution. It is an admitted fact that no evidence had been recorded upto the date of dismissal of the suit. By applying the principle laid down by the Supreme Court in : [1987]1SCR288 , it has to be held that no appeal lies against an order passed on an application made under Order 17 Rule 2 C.P.C.
9. Under Section 96 C.P.C. an appeal lies from every decree passed from any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court and an appeal may also lie from an original decree passed exparte. Section 2(2) of C.P.C. defines the word 'decree', as follows:
'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include (a) any adjudication from which an appeal lies as an appeal from an orders, or
(b) any order of dismissal for default.'
It was therefore contended by the learned Counsel for the appellants that since the trial Court passed only an order of dismissal for default no appeal lies before the lower Appellate Court against such an order of dismissal under Section 96 C.P.C. and therefore the Judgment and decree of the lower Appellate Court deserves to be set aside. The argument of the learned Counsel for the appellants has considerable force inasmuch as the order passed by the trial Court dismissing the suit is not one on merits but an order of dismissal passed for default, in appearance of the plaintiffs before the trial Court. As already pointed out no evidence had been recorded by the trial Court upto the date of the impugned order of dismissal and hence it has to be held that an appeal does not lie under Section 96 C.P.C. against such an order.
10. I am of the opinion that, in the facts and the circumstances of the case, the impugned order is not an order passed under Order 17 Rule 3 C.P.C. I therefore allow the appeal and set aside the impugned Judgment and decree passed by the Civil Judge, Karwar, in R.A. No. 44/1988, on 6-1-1989. However, liberty is given to the respondents to revive the application filed before the trial Court for restoration of the suit for dismissal on merits in accordance with law.